Implied consent in the formation of international commercial arbitration agreements

The fundamental element of international commercial arbitration agreements is undoubtedly the consent to arbitrate. This is because the parties' ability to resort to arbitration, an alternative to the ordinary judicial path before state courts yet still recognized by the legal system as a binding form of adjudication, is made possible only through an arbitration agreement. However, it is observed that the approaches regarding the existence and validity of the parties' mutual consent to arbitrate, which forms the constituent element of arbitration agreements, have evolved in parallel with the development of international commercial life over the past century. One of the issues where the concrete reflections of this evolution can be seen is the view that the tendency to rigidly formalize the consent to arbitrate should now be abandoned. In this context, in arbitration agreements subject to the principles of contract law in terms of their formation, it has become accepted that the parties may express their consent to arbitrate not only explicitly but also implicitly, particularly when such implicit declaration derives its force from the law. A similar approach should be adopted regarding the law governing the substance of the arbitration agreement, which determines the consent to arbitrate. Accordingly, this study examines, by setting out its principles and overcoming various legal obstacles, the implied consent to arbitrate from a conceptual perspective, with its various pre and post dispute manifestations, and evaluates the theories generally accepted in doctrine regarding the implied choice of law applicable to the substance of the arbitration agreement, in order to reassess the role of the concept of implied consent in light of the needs of international commercial arbitration.